Williams v. Louisiana State et al
ORDER AND REASONS AFFIRMING MAGISTRATE JUDGE'S DECISION: 3 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Court. Signed by Chief Judge Sarah S. Vance on 11/20/2013. (mmm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
STATE OF LOUISIANA
GOVERNOR BOBBY JINDAL
ORDER AND REASONS
Plaintiff Donald Williams's appeals the magistrate judge’s
October 10, 2013 Order and Reasons denying his application to
proceed in forma pauperis on his 42 U.S.C. § 1983 action.
the following reasons, the Court AFFIRMS the magistrate judge’s
Plaintiff Martin Franco is currently incarcerated in the
David Wade Correctional Center in Homer, Louisiana.
10, 2013, he filed an application under 28 U.S.C. § 1915 to
proceed in forma pauperis on a claim under 42 U.S.C. § 1983
against the State of Louisiana and Governor Bobby Jindal.
Plaintiff alleges that he has suffered irreparable harm as a
result of the inadequate indigent defender programs in Orleans,
Jefferson and St. Tammany Parishes and the ineffective assistance
of his attorneys.
He seeks monetary compensation and injunctive
and declaratory relief.
Determination of Williams's pauper status was referred
automatically to the magistrate judge under Local Rule
72.1E(B)(1) and 28 U.S.C. § 636(b).
The magistrate judge denied
plaintiff’s application to proceed as a pauper pursuant to 28
U.S.C. § 1915(g) in an Order and Reasons dated October 10, 2013.
Section 1915(g) precludes a prisoner from proceeding in forma
pauperis if he has, “on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on the
grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.”
magistrate judge found that plaintiff has filed at least four
civil actions that have been dismissed as frivolous or for
failure to state a claim for which relief could be granted.1
magistrate judge further concluded that plaintiff failed to show
that he was in imminent danger of serious physical injury.
Franco then filed a Notice of Appeal.2
He does not contest
the magistrate judge’s finding that he is not in imminent danger.
Instead, Williams asserts that the dismissals of his earlier
actions should not count as "strikes" against him, because some
R. Doc. 2 at 2.
R. Doc. 3.
of the claims in those actions were heard on the merits.3
There is some disagreement among courts over whether a
magistrate judge’s ruling on an IFP application should be treated
as a ruling on a non-dispositive pre-trial matter under 28 U.S.C.
§ 636(b)(1)(A) and reviewed for clear error, or treated as a
report and recommendation prepared under 28 U.S.C. § 636(b)(1)(B)
and thus reviewed de novo.
See Wilson v. Becker, No. 07-7157,
2008 WL 81286 (E.D. La. Jan. 7, 2008)(collecting cases).
Fifth Circuit touched on this issue in Donaldson v. Ducote, 373
F.3d 622 (5th Cir. 2004), and observed that a party “dissatisfied
with a magistrate judge’s findings and recommendations [regarding
an IFP application] may  obtain relief by objecting to the
magistrate judge’s findings and recommendations, thereby
compelling the district court to review his objections de novo.”
Donaldson, 373 F.3d at 624.
*2 (discussing Donaldson).
See also Wilson, 2008 WL 81286, at
It is unnecessary to resolve the
conflict in this case, however, because under either standard of
review - clear error or de novo - the Court finds that
plaintiff’s application is devoid of merit.
Under 28 U.S.C. § 1915(g), a prisoner is barred from
bringing a civil action as a pauper if he has, on three or more
R. Doc. 3 at 7.
earlier occasions while in prison, brought an action or appeal in
federal court that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim.
that a dismissal should not count towards the so-called "three
strikes rule" unless the entire action was dismissed on one of
the enumerated grounds.
He contends that some of the claims in
three of his earlier actions were heard on the merits.
clear, however, that Williams's descriptions of the procedural
history of his previous actions were merely lifted from the facts
of an unrelated case in the Seventh Circuit.
See Turley v.
Gaetz, 625 F.3d 1005, 1007 (7th Cir. 2010).
On at least five
occasions, including those listed by the magistrate judge,
Williams's complaints have been dismissed as frivolous in their
See Williams v. Louisiana Supreme Court, CIV.A. 06-
8716, 2007 WL 763641 (E.D. La. Mar. 9, 2007) (dismissing with
prejudice plaintiff's claims as legally frivolous and/or for
failure to state a claim); Williams v. Elloie, CIV.A. 00-3387
(E.D. La. Feb. 21, 2001) (dismissing petition for writ of
mandamus as legally frivolous and/or for failure to state a
claim); Williams v. Roberts, CIV.A. 96-3296 (M.D. La. Sept. 13,
1996) (dismissing action as frivolous); Williams v. Lombard,
CIV.A. 93-1508 (E.D. La. June 11, 1993) (dismissing suit as
frivolous); Williams v. Woodfork, CIV.A. 93-1509 (E.D. La. Aug.
25, 1993) (dismissing action as frivolous and without prejudice
to plaintiff's state court rights).
Accordingly, the magistrate judge correctly determined that
the three-strikes rule bars Williams's application to proceed in
For the foregoing reasons, the Court AFFIRMS the magistrate
judge’s denial of plaintiff’s application to proceed in forma
pauperis in this action.
New Orleans, Louisiana, this 20th day of November, 2013.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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